Jessee v. State

¶1specially concurring.

¶2I agree that lessee’s conviction for burglary should be affirmed. I do not, however, agree with the rationale in the majority opinion which leads to that result. The seizure of evidence from Jessee’s cabin should not be upheld on the basis of exigent circumstances. Instead the court should reevaluate the justification for the exclusionary rule and hold that the exclusionary rule is not applicable here.

¶3I have no question that in this instance the law enforcement officers blundered in effecting the seizure of the evidence. I agree with the majority opinion insofar as it concludes that the discovery of the stolen property in this instance was not unlawful. The unlawful conduct occurred when the officers entered the cabin and proceeded to seize the evidence. I am persuaded that the cabin in fact was a residence occupied by Jessee. Even though the subjective belief of the law enforcement officers was contrary to that fact, the law must be applied to a residence. In this instance there was no justification for the warrantless intrusion to seize the evidence. While the majority opinion justifies the search by an application of the plain-view exception to the warrant requirement, I do not find that the analysis there made accounts for the proposition that the constitutional provisions which are applicable here recognize a distinction between searches and warrant-less intrusions to effect seizures. See G. M. Leasing Corp. v. United States, 429 U.S. 338, 354, 97 S.Ct. 619, 629, 50 L.Ed.2d 530 (1977), on remand 560 F.2d 1011 (10th Cir. 1977), cert. denied 435 U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d 516 (1977); Goddard v. State, Wyo., 481 P.2d 343 (1971). In both the Fourth Amendment to the Constitution of the United States and in Art. 1, § 4 of the Constitution of the State of Wyoming, protection is offered against “unreasonable searches and seizures.” (Emphasis added.)

¶4In State v. Chrisman, 94 Wash.2d 711, 619 P.2d 971 (1980), the court sets forth a very apt analysis of the applicable law in dealing with a situation which is similar. The court there notes that the primary requirement for application of the plain-view exception is “(1) a prior justification for intrusion.” State v. Chrisman, supra, 619 P.2d at 974. This, in essence, is the primary element for application of the plain-view exception as set forth in McCutcheon v. State, Wyo., 604 P.2d 537 (1979), which is stated in the majority opinion as “(1) the officer’s presence must be proper.” As the Supreme Court of Washington noted, the Supreme Court of the United States has said that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972). This concept was reiterated in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371-80, 63 L.Ed.2d 639 (1980). See Goddard v. State, supra.

¶5*65While the majority opinion attempts to articulate exigent circumstances applicable in this instance which justify the intrusion, I do not agree that there were any exigent circumstances that could justify this intrusion. There obviously was no danger to the law enforcement officers. There is no evidence of any consent to enter; they were not in hot pursuit of a fleeing suspect; nor were they engaged in responding to an emergency. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Vale v. Louisiana, 399 U.S. 30, 34-35, 90 S.Ct. 1969, 1971-1973, 26 L.Ed.2d 409 (1970); United States v. Anthon, 648 F.2d 669, 675 (10th Cir. 1981). The only appropriate exigent circumstance is the one isolated by the majority opinion, and that is the possible destruction of evidence. For an apt discussion of this exception and the manner in which it appropriately is applied, see Keeter v. Commonwealth, Va., 278 S.E.2d 841 (1981).

¶6My interpretation of the situations in which this exigent circumstance may be invoked is that there must be present circumstances which manifest a real, as distinguished from a fancied or speculative, possibility that absent the intrusion the evidence may be lost. It would seem that normally this requires the presence of some person who could accomplish the destruction of the evidence or its removal, or probable cause to believe that such a person is present. This factor was not present in this case, nor was there any good basis for any probable cause to believe that such a person was present. The failure of the law enforcement officers to be properly prepared to secure the premises until a search warrant could be obtained does not qualify as an exigent circumstance justifying warrantless seizure of evidence from a residence.

¶7We have said many times, however, that we can affirm the district court on any proper basis, even though the particular legal proposition was not relied upon in making the disposition in the district court. The basis that I would use for affirming the district court in this case is that the exclusionary rule should not be applied to the evidence obtained from the cabin, and consequently the conviction can be upheld on that basis.

¶8In my judgment the exclusionary rule in part has outlived its legal and social utility. I am constrained to reiterate language that I included in a dissenting opinion in the case of Rodarte v. City of Riverton, Wyo., 552 P.2d 1245, 1264 (1976):

“ … Among the ‘blessings of liberty’ and our ‘ … liberties,’ is the right to be free from the criminal acts of others.…

“Courts must examine the issues presented to them in the context of the needs of all the citizens whom they serve. … The people of this land suffer more from crime than they ever have before and more than the citizens of any other country of the world. They have an urgent need to be free from the impact of crime in their lives. The wisdom of any judicial decision which has the effect of inhibiting the efforts of those charged with the enforcement of law on behalf of all of us must be questioned. We need to examine critically the recent history of our courts during which the individual sovereignty … has been emphasized, and we need to ask whether we are not moving perilously closer to the point at which the rights of all of us, which we hold so dear, are sacrificed in the interest of the protection of each of us. … ” (Footnotes omitted.)

¶9The time now has come to consider whether the exclusionary rule as articulated in State v. George, 32 Wyo. 223, 231 P. 683 (1924), citing State v. Peterson, 27 Wyo. 185, 194 P. 342, 13 A.L.R. 1284 (1920), and Wiggin v. State, 28 Wyo. 480, 206 P. 373 (1922), should not be re-examined and limited.1 This court there relied upon authorities from other states and from the federal courts, including Weeks v. United States, *66232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann.Cas. 1915C, 1177 (1914). The federal history is, therefore, pertinent to the inquiry.

¶10In Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), the Supreme Court of the United States evaluated the justification for the exclusionary rule and substantially focused upon the deterrence of misconduct of law enforcement officials. In addition to the factor of deterrence the Supreme Court there also justified the exclusionary rule in the context of a healthy federalism depending, so the Court said, upon the avoidance of needless conflict between state and federal courts. In addition the Court described a factor identified as the “imperative of judicial integrity.”

¶11It should be noted that in more recent decisions the deterrence factor has been emphasized, and the Supreme Court of the United States has begun to indicate that it would not be so prone to invoke the exclusionary rule where a deterrent effect did not appear to be likely to result from such a ruling. United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978); Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). The approach has been summarized in United States v. Williams, 622 F.2d 830, 846 (5th Cir. 1980), cert. denied 449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114 (1981), as follows:

“Henceforth in this circuit, when evidence is sought to be excluded because of police conduct leading to its discovery, it will be open to the proponent of the evidence to urge that the conduct in question, if mistaken or unauthorized, was yet taken in a reasonable, good-faith belief that it was proper. If the court so finds, it shall not apply the exclusionary rule to the evidence. Neither Markonni’s good faith nor its reasonableness are questioned here, and a proper allocation of the burden of proof on this issue is therefore not squarely presented by the facts of this case. We therefore leave that matter to another day, going no further than to delineate the ‘exception’ itself explicitly and to recognize that where the proponent establishes it, the evidence should be received if otherwise admissible.”

¶12The social conditions which persuade me to conclude that the exclusionary rule no longer should be followed in all instances relate primarily to the pervasiveness of crime in the society of the 1980s. I do not believe that the courts of this land can ignore the encouragement which a blind adherence to the exclusionary rule must afford to the criminal component of our society. Furthermore, I identify in the development of civil actions for deprivation of constitutional rights,2 and in the legal rules, whether statutory or common law, which have developed to permit suits against police officers a more effective deterrent than the exclusionary rule. Indeed I sometimes suspect that the exclusionary rule is no deterrent at all, but instead the law enforcement officers justify the loss of the case by pointing to judicial, rather than investigative, shortcomings.

¶13While I do not denigrate the desirability of federal-state cooperation, I am not prepared to subscribe to the theory that a healthy federalism, as outlined in Elkins v. United States, supra, depending upon the avoidance of needless conflict between state and federal courts is necessarily a valid justification for the exclusionary rule. If the factor is applicable at all in state courts, it does not seem likely to me in this time that there would be much evidence unlawfully obtained by federal officers and presented on a silver platter to state officers for use in state prosecutions. The in-hibitive factors upon such conduct by federal law enforcement officers make that almost an impossibility.

¶14As for the imperative of judicial integrity, I am satisfied that the same factors that *67present a more effective deterrent to misconduct in the form of civil relief also satisfy the imperative of judicial integrity. The fabric of American jurisprudence now permits a solution in which the wrongdoer does not go free, but the law enforcement officer who invades a constitutional right of. any individual is not likely to escape the consequences of his conduct. In fact, the civil remedies present a solution to an innocent person who would not otherwise enjoy a remedy under the exclusionary rule even though his constitutional rights may have been rather grievously invaded. In every instance the civil remedy adequately meets the wrong done to a person who is charged with a crime. The imperative of judicial integrity is better satisfied by the structuring of a civil remedy for invasion of constitutional rights than it is by the exclusionary rule.

¶15I would, therefore, conclude that the exclusionary rule should only apply to those situations in which there was an intentional invasion of the Fourth Amendment rights of an accused person and there existed no reasonable good-faith belief by the law enforcement officer that the invasion was proper. In those instances in which there did exist a reasonable and good-faith belief that the invasion of the rights of the accused was proper I would hold that the exclusionary rule should not be invoked because its deterrent effect would be highly questionable. In this particular instance the good faith of the law enforcement officers really is not questioned. Although their belief was erroneous, they believed that they were doing the right thing under the circumstances, and that belief was not unreasonable given those circumstances. I then would permit a civil action against the individual law enforcement officers to adjust the invasion of the constitutional rights.

¶16A civil remedy which is invoked as an instrument of social policy is not new to our system of jurisprudence. The structuring of causes of action for personal injuries caused by defective products is widely assumed to have had a salutary effect upon manufacturing practices. The same salutary effect would occur with respect to law enforcement practices.

¶17As to those situations which are not intentional invasions of constitutional rights conducted in bad faith, but which were based upon a reasonable good-faith belief of the officer that his conduct was proper under the circumstances, the civil action for damages is an adequate remedy. As to those instances in which the misconduct of the officers is intentional and accompanied by bad faith, the exclusionary rule still would pertain as additional protection against the unscrupulous and overzealous. The state should not then complain because it can and should deter its officers from so acting.

¶18I would premise affirmance upon the proposition that the exclusionary rule is not applicable in this instance.